Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
This matter is before the Attorney General on appeal from the response of the Kenton County Fiscal Court to the July 24, 1999 open records request of John Ellenbogen to inspect the following records set forth in numerical paragraph 3 of his request:
a. All Original Records reflecting the daily/weekly/ monthly number of prisoners held in the Kenton County Jail from 01 January 1998 to the present date, including the breakdowns by classifications used in the jail's record keeping and reporting processes (in internal reporting and reporting to State and Federal Government agencies.)
a. All Original Planning Records reflecting the daily/weekly/ monthly/ annual number of prisoners anticipated to be kept during the life cycle of a new prison projected by the KCFC [Kenton County Fiscal Court].
a. All Original Records containing information regarding the mission, objectives and criteria developed, and considered, and selected by the KCFC for the new prison options projected by the KCFC.
a. All Original Records containing information regarding the anticipated physical building (and other space) volume needed, and the financial quantification, developed for, and considered by, and selected by the KCFC for the new prison options projected by the KCFC.
a. All Original Minutes, Notes, Correspondence, Statistical Information, and other information in relation to items 3.a) to 3.d) above.
Responding on behalf of the County Judge/Executive and the Fiscal Court, Garry L. Edmondson, Kenton County Attorney, stated:
Records reflecting the information set forth in item "3a)" of your letter is in the custody of the Kenton County Jailor, Terry Carl to the extent to which they exist. He may be located in the Kenton County Court House at 303 Court Street, Covington, Kentucky 41011.
Items b), c), and d) are contained in the Report prepared by the "jail consultants" hired by the Fiscal Court. You may examine a copy of that document in the Office of the County Judge by making an appointment anytime between the hours of 9:00 A.M. and 5:00 P.M. Monday through Friday. Any original notes drafts etc. that said consultants generated are in their control and are not subject to public review.
Item e) said information is not available and if it were it is not subject to public inspection by virtue of KRS 61.878[1](i) and (j).
Information you seek from the Jailor may or may not be kept on a computer, however it would be found on written reports and you may obtain copies of same upon request.
All copies you request will be billed to you at $ .25 per page, in advance.
In his letter of appeal, Mr. Ellenbogen asks this office to determine whether the response of the KCFC was in accord with the requirements of the Open Records Act. For the reasons that follow, we conclude that the agency's response was consistent in part and inconsistent in part with the Act.
We address first Mr. Ellenbogen's request for original records which reflect "the daily/weekly/ monthly/ number of prisoners held in the Kenton County Jail from 01 January 1998 to the present date."
In its response, the KCFC responded that records that reflect the requested information, to the extent they exist, are in the custody of the Kenton County Jailer, 303 Court Street, Covington, Kentucky 41011. This response complied with the requirements of KRS 61.872 (4), which provides:
If the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records.
Mr. Ellenbogen requested to inspect the original records which contained the information relating to the number of prisoners held in the Kenton County Jail. He was furnished the name and location of the Jailer, the official custodian of these records. Accordingly, we conclude this response was consistent with the requirements of KRS 61.872(4).
In his letter of appeal, Mr. Ellenbogen states that he is unsure whether or not the Kenton County Judge/Executive has Kenton County Jail statistics, which the Judge and the KCFC used in the planning process for the new jail building project. Records reflecting this information were requested by Mr. Ellenbogen in his requests 3 a)-d).
In KCFC's response, Mr. Edmondson stated that these statistics "are contained in the Report prepared by the 'jail consultants' hired by the Fiscal Court," and made the Report available for Mr. Ellenbogen's inspection during the normal business hours of the agency.
To the extent KCFC has agreed to make the Report which contains the statistical information, which Mr. Ellenbogen seeks, available to him, the agency has complied with the Open Records Act. However, if the agency has other records which are responsive to Mr. Ellenbogen's request, it must so advise and, unless the records which he requested fall within one or more of the exceptions which authorized nondisclosure, they must be disclosed. If the agency does not have the requested records or the records do not exist, the KCFC must affirmatively so state. OAG 91-101.
We address next, Mr. Ellenbogen's request to inspect all "Original Minutes, Notes, Correspondence, Statistical Information, and other information in relation to 3.b) to 3.d)." This request is too broad and nonspecific. Mr. Ellenbogen does not request a specific record or describe a specific record or records which he wished to inspect. Instead, his request was an "any-and-all-records-that-relate-type-of-request," couched in the broadest possible terms. 96-ORD-101. The KCFC's response was that this information was not available. In a subsequent response provided to Mr. Ellenbogen after his letter of appeal, Mr. Edmondson advised:
You did not request minutes of the Fiscal Court meetings, you requested "minutes" that are related to prisoner information which the Fiscal Court does not have. Likewise, you requested "minutes" for information that the jail consultants may have, that is not in the possession of the Fiscal Court.
An agency is not required to nor has it been construed to impose an additional duty on an agency to conduct a search of its records or embark on an unproductive fishing expedition in order to satisfy a nonspecific request. 99-ORD-14. It is our view that a request for any and all records which contain a name, a term, or a phrase is not a properly framed open records request, and that it generally need not be honored. Certainly Mr. Ellenbogen would be entitled to inspect minutes of public meetings, or any other reasonably described public records, to extract the information he seeks. We conclude the KCFC's response, in this instance, did not constitute a violation of the Open Records Act.
We encourage Mr. Ellenbogen and the KCFC to work toward an amicable resolution of this dispute - Mr. Ellenbogen by framing his request more narrowly by requesting to inspect reasonably described records, and the KCFC by working with him in a spirit of cooperation to make those records available for his inspection.
Finally, Mr. Ellenbogen argues that the KCFC's fee of $ .25 per copy is an excessive charge for copies of public records. We agree. An agency can only assess a reasonable copying charge for public records not to exceed its actual costs, excluding staff time required. KRS 61.874(3).
This office has previously held that a twenty-five cent copying charge is excessive when that fee is not based upon the agency's actual cost, exclusive of personnel, for making copies. 94-ORD-43; OAG 90-50. We continue to ascribe to this view. Unless the KCFC can establish that its actual cost for reproducing records is greater than ten cents per page, based on the cost of media and mechanical processing as defined in KRS 61.870(7) and (8), we conclude that twenty-five cents per page would be an excessive copying fee.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.